Appeal No. 2006-3202 Page 7
Application No. 10/323,592
measurements, our impression is that blood flow would have occurred inside the
vessels. Casscells ‘261, column 36, lines 17-20. Nonetheless, immediately before the
dog example, beginning on column 35, line 15, another experiment is described in
rabbits in which temperature is measured in normal blood-filled vessels (“FIGS. 32A,B
are color infrared photographs showing that in this Watanabe rabbit thermal
heterogeneity is visible from the outside using an infrared camera. The rabbit's carotid
arteries were momentarily retracted upward by sutures for photography.” Id., column 35,
lines 27-31.) Thus, we see no merit in Appellants’ argument.
Nakano is cited by the Examiner to establish that, when experiments are
performed on blood vessels through which blood flowed, the flow would have been at
least 5 cm/s. Answer, page 8. Appellants do not challenge this finding, but instead
argue that blood was significantly restricted under the conditions that Casscells ‘261
took vessel wall temperature measurements. Brief, page 14, ¶ 3. Having already
rejected this argument, we agree with the Examiner’s reasonable presumption that the
blood flow velocity would have been “at least 5 cm/s” throughout Casscells’ ‘261 method
when conducted on vessels supplied with blood.
We now turn to the question of whether the claimed temperature range would
have been obvious in view of Casscells ‘261. Appellants’ range of “above zero but not
more than 0.39°C” overlaps with Casscells’ ‘261 preferred temperature range of “about
0.2 to 5°C.” It is well-established that even a slight overlap in ranges establishes prima
facie obviousness. See, e.g., In re Peterson, 315 F.3d 1325, 1329, 65 USPQ2d 1379,
1382 (Fed. Cir. 2003). An exception has been recognized where a parameter had not
been recognized as being a “result-effective variable.” In re Antonie, 559 F.2d 618, 195
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